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Peru: Letter to Presidente Ollanta Humala

Washington, DC, September 20, 2012

His Excellency Ollanta Humala

President of Peru

Lima, PERU

Dear President Humala,

I am writing to share with you our concerns regarding the use of lethal force by Peruvian security forces during crowd-control operations and to recommend measures that we believe your government should take to ensure that these operations are conducted in compliance with international human rights principles.

In the first year of your presidency, fifteen civilians were shot and killed, allegedly by members of the country’s security forces, during confrontations with protestors.[1] During the administration of your predecessor, President Alan García, 165 civilians were killed during “social conflicts and subsequent police interventions,” according to the National Human Rights Ombudsman’s Office.[2] Thirty police officers also lost their lives in these incidents.

We recognize that the Peruvian state has a responsibility to ensure that people who engage in public protests and demonstrations respect the law, as well as to protect lives, public installations, and property when these come under attack. However, it also has an obligation to conduct these operations in a manner that guarantees full respect for human rights, including the rights to free speech and free association, and the right to life and physical integrity.

A Human Rights Watch delegation visited Cajamarca in July to investigate the circumstances in which civilians were shot and killed by security forces in Celendín earlier that month. We found evidence that strongly suggests that the use of lethal force was unwarranted and constituted a serious violation of international human rights norms.

Based on these findings and extensive interviews with senior government officials, including representatives of the Ministry of the Interior, the Ministry of Justice, the Attorney General’s Office, senior police commanders, and the National Human Rights Ombudsman, we have identified several issues that we believe require your government’s urgent attention.

The Use of Lethal Force in Celendín

On July 3, an initially peaceful march involving an estimated 3000 protestors led to a violent confrontation with police and soldiers after a group of demonstrators forced their way into the city hall in the Celendín’s central plaza. In subsequent clashes between demonstrators and security forces, at least twenty civilians were shot with live ammunition, four of them fatally. Two policemen and a soldier also suffered gunshot wounds, according to the Interior Ministry.

Under international norms, the use of firearms against the protestors would have been permissible only if the shooters reasonably believed it was necessary in order to protect themselves or others from serious injury or death.[3] Moreover, the intentional use of lethal force would have been permissible only if the shooters believed lethal force was unavoidable to protect life.[4]

The evidence we have collected strongly suggests that the use of lethal force by the security forces in Celendín was unwarranted. While some protesters reportedly attacked police with rocks, sticks, and homemade rockets, multiple witnesses insisted that none were carrying firearms or using force in an evidently life-threatening fashion. Indeed, three residents told Human Rights Watch that they saw soldiers firing live ammunition directly at people who were unarmed. A fourth reported seeing unarmed civilians come under fire, but could not see who was shooting at them. One of the civilians killed, José Antonio Sánchez Huamán, was standing in the street unarmed and passively observing events when he was shot by soldiers a block away, according to a resident of the town who witnessed the shooting from her second floor balcony. Another fatal victim, Paulino Eleuterio García Rojas, was also standing in the street observing events when he was shot, according to another resident who witnessed the shooting through the window of her home, but did not see who fired the shots.

According to information we gathered during the mission, the only instance of protestors allegedly using potentially lethal force occurred between 1:00 and 1:30 p.m. outside the town hall, when—according to the Interior Ministry—two police officers and one soldier suffered bullet wounds, another soldier received a blow to the head, and a third was injured by a homemade rocket.[5] The use of lethal force by security forces to repel this reported attack might have been justifiable if they had no other means at their disposal to counter what they considered to be an imminent risk of death or serious injury to themselves or to third parties (though, as discussed below, it would not necessarily absolve the state of responsibility for the deaths).

Yet, in fact, the shooting of civilians in Celendín was not a direct response to this reported attack. It occurred more than an hour afterwards, according to multiple witnesses. At Human Rights Watch’s request, a doctor who attended the wounded at the Celendín hospital reviewed the hospital records, which showed that the first civilian injured in the confrontation that day was admitted to the facility at 3:05 p.m., an hour and a half after the time reported by the Ministry of the Interior for the alleged shooting of the police. The last injured person was admitted at 4:30 p.m. According to the doctor, the wounded were brought to the hospital “within 30 minutes” of having been shot.

With regard to the fatalities, the residents who witnessed the shootings of Sánchez Huamán and García Rojas reported that these occurred around 3:15and 3:00 p.m., respectively, which is consistent with hospital records that show they were admitted at 3:50 and 3:40 p.m. A third fatal victim, César Medina Aguilar, was also admitted to the hospital more than two hours after the time the two police and one soldier were reportedly shot. (Human Rights Watch was unable to determine the admittance time of the fourth fatality, Faustino Sílva Sánchez, who was brought to a different facility.)

Without an exhaustive investigation by competent authorities, it is impossible to completely rule out the possibility that security forces were, in some instances, responding appropriately to credible threats when they shot civilians in Celendín. However, the evidence of possible abuse is sufficiently compelling to warrant a thorough and impartial investigation into what took place. Moreover, given the apparent similarities between events in Celendín and the numerous other instances of lethal force used during crowd-control operations in recent years, it is vital that these cases receive urgent attention as well.

We therefore urge you to do everything within your authority to ensure that all killings of civilians during crowd-control operations in Celendín and elsewhere in recent years are thoroughly investigated, and any security force members found to have used unlawful force are appropriately sanctioned.

Proper Equipment for Crowd-Control

We recognize that crowd-control operations can at times be very difficult and even dangerous work for the police officers involved. Indeed, as mentioned above, thirty police officers have lost their lives carrying out these operations in recent years, and hundreds have been injured, some gravely.

The state has a clear obligation to provide police with the proper protection and equipment they need to ensure they can carry out this responsibility without jeopardizing their lives, or the lives of others. According to the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, law enforcement officials should “be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to decrease the need to use weapons of any kind.”[6] Governments and law enforcement agencies should also “equip law enforcement officials with various types of weapons and ammunition”—including “non-lethal incapacitating weapons”— that allow a graded and proportionate response to violent acts in protests and demonstrations.[7]

The police colonel who was serving as the commander for Cajamarca at the time of the Celendín shooting told Human Rights Watch that the police in Celendín ran out of teargas soon after the confrontation with protestors began.[8] Finding themselves without the means to contain a large crowd of protestors—some of whom were throwing stones and using homemade rockets—the police withdrew from the central plaza and sought the protection of army soldiers who were stationed at the town stadium several blocks away.[9] The army then participated alongside the police in efforts to control the crowd and restore public order in the streets of Celendín. According to the national director of police operations, reinforcements from the police’s National Division of Special Operations (DINOES) arrived only after the fatal shootings.[10] Had the police in Celendín been properly equipped they might have been able to control the situation and the intervention of the army, with its fatal consequences, might have been avoided.

The shortage of tear gas in Celendín is symptomatic of a more widespread failure to ensure that security forces involved in crowd control are adequately equipped. Both the director of the National Police and the director of police operations told Human Rights Watch of the chronic shortage of essential equipment, including shields, helmets, body armor, and tear gas shotguns.[11]

The National Human Rights Ombudsman’s Office documented how these shortages generate circumstances in which police are far more likely to commit abuses. In its March 2012 report entitled Violence in Social Conflicts, the Ombudsman’s Office found that:

Police units do not have sufficient equipment to carry out operations: teargas canisters, rubber pellets, and protective shields, are scarce. This problem increases the level of risk for police and civilians since the police officer can perceive himself to be in a situation of inferiority, and become fearful when faced by an aggressive crowd, which may influence how he interprets the principles governing the use of force.[12]

Given this situation, we urge you to do everything possible to ensure that police involved in crowd-control operations are properly equipped and trained to carry out their responsibilities without resorting to the unlawful use of force.

We welcomed your interior minister’s recent announcement that the government would purchase $10 million worth of protective equipment and non-lethal weaponry for the police. It is vitally important that the distribution of this material is carefully monitored to ensure that police can count on this equipment when they need it, and that it be used in a manner that is fully consistent with international norms.

Rules on the Use of Force

The events in Celendín also show how crucially important it is that police have clear rules to guide them in determining the appropriate level of force to use in response to the threat of violence during public protests and demonstrations.

Existing guidelines—adopted by the Interior Ministry through a 2006 Human Rights Manual and a 2009 vice-ministerial directive—require the police to observe international norms on the use of force, including the UN Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, referred to above.[13]

Unfortunately, however, it appears that the police are not adequately trained in the application of these guidelines. According to the National Human Rights Ombudsman current police training only refers tangentially to procedures for crowd control during social conflicts, and the shortages of equipment available for instructional purposes reduce the effectiveness of the training.[14]

Moreover, as you are aware, there is currently a bill before Congress (Proposed Law 81/2011-CR), that, if passed in its present form, would undercut these guidelines and potentially authorize the use of lethal force in ways that violate international standards. While we were pleased that your efforts to improve the text of the proposed law led to some important modifications, not all of your observations have been accepted by the Congressional commission responsible for reviewing them.[15] As a result, the proposed legislation remains fundamentally flawed in three respects.

First, the proposed law contains no explicit reference to the principleof “proportionality,” which is an essential element of the international standards mentioned above. The UN Basic Principles, for example, establishes that law enforcement officials should "[e]xercise restraint in such use [of force] and act in proportion to the seriousness of the offence and the legitimate objective to be achieved" [emphasis added].[16]

Second, the proposed law allows for the use of lethal force in contexts in which it would not be permissible under international norms. Specifically, Article 7 would authorize the use of firearms or other forms of lethal force against a person who “jeopardizes the life, integrity or personal liberty of the police or a third party” [emphasis added], whereas international norms only allow the use of firearms where there is an imminent threat of death or serious injury, and only allow the intentional use of lethal force when it is strictly unavoidable in order to protect life.[17]

Finally, the proposed law appears to create a presumption of immunity for police who use lethal force by establishing that "[t]he action of a police officer who used lethal force in accordance with this law will not be subject to criminal responsibility."[18] What is missing from this clause is language—such as you proposed in your observations on the bill—requiring a proper investigation to determine whether the use of force was lawful. Without such an investigation there is a serious risk that police authorities will make an a priori determination that any use of force by the police is lawful, regardless of the facts.

Given these serious flaws in the bill, we urge you to continue to use your leadership to advocate for Congress to modify these problematic aspects of the proposed legislation. If the bill is approved in its current form, we would urge you to do all you can to correct the flaws in the legislation when promulgating the regulations that govern its implementation.

In addition, it is vital that the rules on use of force are fully understood and properly applied by those who are charged with upholding the law during public protests. Therefore, weurge you to ensure that all members of security forces who engage in crowd-control operations are required to learn international norms on the use of force and are properly instructed on their implementation. They must also be made fully aware that they will be held accountable if they fail to abide by them.

Use of the Military in Crowd-Control Operations

A final concern raised by the events in Celendín regards the use of the military in crowd-control operations. The military should be involved in policing activities of this sort only as a last resort, in exceptional circumstances, and in full accordance with Peruvian law.[19] Moreover, when military personnel are involved in policing activities, it is crucially important that they abide by the same rules regarding the use of force applicable to police forces and, if they commit abuses, that they are held accountable in civilian courts.

Currently, the use of the armed forces in public security operations is regulated by Legislative Decree 1095, which was adopted by President Alan García in 2010. This decree contains a highly problematic provision (Article 27), which states that "illicit conduct allegedly committed by military personnel when applying this decree or during the course of their duties" is subject to military jurisdiction. By establishing that any "illicit conduct" carried out by military personnel is subject to the jurisdiction of military courts, this decree could be used to prevent civilian courts from trying cases of human rights violations committed by military personnel against civilians.

International human rights bodies have consistently rejected the use of military prosecutors and courts in cases involving abuses against civilians, stating that the jurisdiction of military courts should be limited to offenses that are strictly military in nature. In a case against Peru, the Inter-American Court of Human Rights has stated that military jurisdiction should have a "restrictive and exceptional scope."[20]A "restrictive" jurisdictional scope would allow military personnel to be tried in military tribunals only when they are charged with crimes or offenses that "by [their] own nature attempt against legally protected interests of military order."[21] The United Nations Human Rights Committee, which monitors implementation of the states' obligations under the International Covenant on Civil and Political Rights, has repeatedly called on states parties to subject military personnel who are alleged to have committed human rights violations to civilian jurisdiction.[22]

The authority that Congress recently granted to you to “modify the legal framework governing the armed forces’ involvement in public security activities”[23] provides an excellent opportunity to address this issue. We urge you to use this authority to amend Decree 1095 to clarify that military personnel accused of committing human rights violations against civilians should be investigated and tried by civilian authorities.

[3]The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials establish that law enforcement officials confronting violent crowds may only use firearms “in self-defense or defense of others against the imminent threat of death or serious injury” and “only when less extreme means are insufficient to achieve these objectives.” Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, Principle 9, http://www2.ohchr.org/english/law/firearms.htm (accessed August 15, 2012).

[4]The “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life” [emphasis added], Basic Principles, Principal 9.

[9]According to the national police director, Gen. Raúl Salazar, at the outbreak of the violence, 180 police were facing a crowd estimated at 3000. Human Rights Watch interview with Gen. Raúl Salazar, Lima, July 19, 2012.

[10]Human Rights Watch interview with Dr. Patricia Figueroa, general secretary of the Ministry of the Interior, Gen. Abel César Gamarra, executive director of police operations, and other officials of the Ministry of the Interior, Lima, July 20, 2012.

[15]The current bill now explicitly mentions "international standards" (although it does not include the names of the most relevant ones, as you had suggested), and includes an article with obligations that police forces have to implement after they use force in cases in which civilians are killed or injured.

[16]Basic Principles, Principle 5(a). Similarly, the UN Code of Conduct states that "[l]aw enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty." UN Code of Conduct, Commentary on article 3, section (a)[emphasis added].

[19]The Inter-American Court of Human Rights has stated that: "the Court deems absolutely necessary to emphasize the extreme care which States must observe when they decide to use their Armed Forces as a mean for controlling social protests, domestic disturbances, internal violence, public emergencies and common crime. As stated by the court, 'States must restrict to the maximum extent the use of armed forces to control domestic disturbances, since they are trained to fight against enemies and not to protect and control civilians, a task that is typical of police forces.' The strict fulfillment of the duty to prevent and protect the endangered rights must be assumed by the domestic authorities in observance of a clear demarcation between military and police duties." Inter-American Court of Human Rights, Case of Zembrano Vélez et al. v. Ecuador, Judgment of July 4, 2007, http://www.corteidh.or.cr/docs/casos/articulos/seriec_166_ing.pdf (accessed August 15, 2012), para. 51.

[20]In 2000 the court stated that “[i]n a democratic Government of Laws the penal military jurisdiction shall have a restrictive and exceptional scope and shall lead to the protection of special juridical interests, related to the functions assigned by law to the military forces.” Inter-American Court of Human Rights, Durand and Ugarte v. Peru, Judgment of August 16, 2000, http://www.corteidh.or.cr/docs/casos/articulos/seriec_68_ing.pdf (accessed August 15, 2012), para. 117.

[22]For example, in its 1993 observations to Egypt, the HRC considered that “military courts should not have the faculty to try cases which do not refer to offenses committed by members of the armed forces in the course of their duties.” UN Human Rights Committee, Comments on Egypt, UN Doc. CCPR/C/79/Add.23 (1993), para. 9. In 1997 it urged the Colombian government to take “all necessary steps… to ensure that members of the armed forces and the police accused of human rights abuses are tried by independent civilian courts,” specifically recommending “that the jurisdiction of the military courts with respect to human rights violations be transferred to civilian courts.” UN Human Rights Committee, Comments on Colombia, UN Doc. CCPR/C/79/Add.76, (1997), para. 34.